Somin Considers Partisanship on High Court in Online Symposium

In an online symposium considering the question of whether the Supreme Court is any less partisan than the two other branches of government, Professor Ilya Somin argues that the Court is, in fact, less partisan than the executive and legislative branches. 

"Some ideological bias from judges is an unavoidable cost of judicial review. But the judiciary is still a valuable check on the power of government. Without it, our constitutional rights would be at the mercy of majority opinion and politicians' short-term calculations of partisan advantage," Somin concludes. 

Published along with Somin's viewpoint are those of Professor Tom S. Clark of Emory University, former Oklahoma Congressman Mickey Edwards, TPM reporter Sahil Kapur, and Professor Timothy R. Johnson of the University of Minnesota.

Supreme Partisans? Zócalo Public Square, January 15, 2013.

"It is easy to find cases where liberal and conservative justices vote along ideologically predictable lines. Issues such as Second Amendment gun rights, limits on the power of the federal government, and affirmative action all typically find the conservative justices on one side and the liberals on the other. This is to some degree inevitable in a political system where adherents of different ideologies also support different theories of constitutional interpretation. Although there are many exceptions, conservatives and libertarians tend to be more supportive of originalism, while liberals are more sympathetic to 'living Constitution' theories.

"In addition, some key parts of the Constitution use imprecise, general terms such as 'due process of law' and 'Laws which shall be necessary and proper.' This vague language makes it easier for jurists to persuade themselves that the result they prefer on ideological grounds is also consistent with the text of the Constitution."

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